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A Constitutional History of the United States
Chapter XLVII - Reconstruction III: The Union Restored; Carpetbaggers and Federal Troops
by McLaughlin, Andrew C.

During the summer and autumn of 1868, after the acquittal of the President, the process of Reconstruction — to give it an honorable name — went merrily on. The extremists in Congress were for a time in a very bad temper, but they had everything their own way. Stevens died in August, and for a considerable time Ben Butler stood forth as the conspicuous rebel-hunter in the House, a fact which seems to mark the low tide of congressional history.

The Reconstruction measures had been carefully prepared to make certain the predominance in the states of those persons who would support the congressional plan. In addition to the negroes, absolutely unfamiliar with political matters and most of them utterly uneducated, there were in the south some whites who were eager to take part in the joyous job of carrying out the congressional policy. Some of these men were northerners — the "carpetbaggers" — who had followed in the train of the union army or who after the war had drifted into the south in search of adventure and profit; some of them were by no means without brains and conscience, but there were many not thus encumbered. There were a few southern whites of intelligence and of practical political experience who took active part in constitution-making and appear to have been influential in keeping out of the constitutions some of the more foolish and extravagant proposals. The class most detested by the conservative elements was made up of "turncoat" whites who came to be known as "scalawags", men of southern birth, many of them without either the training or the character to fit them for official tasks. Though a few of the negroes were clever and shrewd, if not wise, and though there was here and there one capable and eloquent, the majority of the freedmen were, of course, ludicrously incompetent. The wonder is that the result of the conventions was not an absolute travesty of anything even masquerading as the work of statesmen; but, as a matter of fact, the constitutions, when framed, were not grotesque, unless a document is grotesque which bestows the suffrage on men of abysmal ignorance.

As the ruthless process of Reconstruction went on, a question arose (1868) which threatened seriously the congressional program. A certain William H. McCardle had been arrested by a military authority and held for trial before a military commission. Having sought release by a writ of habeas corpus, and having failed, he appealed to the Supreme Court. If the Court should adhere to the doctrine of the Milligan case, it would in all likelihood announce the unconstitutionality of military tribunals in the south; at least the danger of such a decision was too great to be suffered calmly; and so; to prevent judicial interference with the congressional policy, a bill repealing certain portions of a previous act was passed, withdrawing from the Court the authority to entertain appeals of this sort. The bill was vetoed by Johnson; but the veto was of course futile, and the McCardle case was dismissed by the Court because of want of jurisdiction.[1] The episode is illustrative of the high-handed and arrogant determination of the Radical leaders, and is a conspicuous example of the way in which Congress, with an ample majority in control, may be able to override the other departments and can, if the emergency supply the incentive, cast into the waste-paper basket all inconvenient theories of checks and balances and similar uncomfortable doctrines.

June 22, 1868, a bill admitting Arkansas to representation in Congress was passed over the President's veto. When Congress began in 1865 to oppose Johnson's plans, it relied for its immediate power on its constitutional authority to pass upon the elections and qualifications of its own members; from that position it went forward to prescribe the whole process of Reconstruction. When it came now to the final steps, the recognition or the restoration of the reconstructed states, Congress did not entirely forget its first position. The Arkansas Act said that, as the people, in accordance with the acts of Congress, had adopted a constitution which was republican and the legislature had adopted the fourteenth amendment, the state was "entitled and admitted to representation in Congress, as one of the States of the Union...." Although, as far as affirmative legislation is concerned, this declaration of admission to representation was the substance of the bill, it was nevertheless, sent to the President, as if it were an act for the admission of a territory into the union; nothing more clearly exposes the abnormality of the whole process of Reconstruction constitutionally considered. The Constitution, said Johnson in his veto message — probably not without a certain sardonic satisfaction — , "makes each House 'the judge of the elections, returns, and qualifications of its own members,' and therefore all that is now necessary to restore Arkansas in all its constitutional relations to the Government is a decision by each House upon the eligibility of those who, presenting their credentials, claim seats in the respective Houses of Congress." "If ... Arkansas is a State in the Union," he also said, "no legislation is necessary to declare it entitled 'to representation in Congress as one of the States of the Union.' "

Arkansas was allowed representation in Congress "upon the following fundamental condition: That the constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the constitution herein recognized". There were minor provisions not here important. Did this condition mean to imply the right or the intention of Congress to cast the state out of the union or to refuse admission of its elected representatives at any time in the future, if the basis of suffrage were altered? Such an intention seems scarcely possible; but if there was to be no penalty for disobedience to the "fundamental condition", the folly of prescribing it is apparent. Shortly after the restoration of Arkansas, the President announced that six other states had fulfilled the requirements prescribed by Congress — North Carolina, South Carolina, Georgia, Alabama, Florida, and Louisiana. New difficulties arose in Georgia, and, as a consequence, that state was not granted full representation until two years later. At this later time also (1870), the remaining states still lying beyond the pale were readmitted or restored — or whatever may be the proper word for describing the whole strange and abnormal process.

On July 20, 1868, Seward issued a preliminary statement declaring the fourteenth amendment had been adopted by twenty-three states. These states were unquestionably exercising their full functions in the union. It also appeared, the proclamation said, that the amendment had been ratified "by newly-constituted and newly-established bodies avowing themselves to be, and acting as, the legislatures, respectively, of the States of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama...." Two of the states, New Jersey and Ohio, enumerated among the twenty-three states mentioned above, had withdrawn their consent; it was a matter of doubt whether resolutions of withdrawal were valid or not. If the ratifying resolutions of these two states were, notwithstanding their subsequent resolutions of withdrawal, considered in full effect, then the amendment had been ratified by the requisite number.

There is no need of our allowing ourselves to be smothered by the fogs of Reconstruction metaphysics, but can a state, which is not a state and not recognized as such by Congress, perform the supreme duty of ratifying an amendment to the fundamental law? Or does a state — by congressional thinking — cease to be a state for some purposes, but not for others? If the states were no longer states but, as Stevens had asserted, conquered territory, were they competent to amend the Constitution as a condition to admission? Or, if they had committed suicide, and had become territories, were they still sufficiently alive to perform this solemn function of statehood? Congress had no qualms, but passed a resolution naming all of the six southern states as well as Ohio and New Jersey, declaring the fourteenth amendment a part of the Constitution, and ordering its promulgation by the Secretary of State. Formal pronouncement of ratification was made by Seward on July 28, 1868.

The action of the federal authorities in denying by direct implication the right of a state to rescind a favorable vote stands as a precedent, and probably is based on good legal grounds. The most substantial basis for asserting the illegality of withdrawal of approval is that, when a state has acted and officially announced its decision, the subject has passed out of its hands; for this particular job its duty is finished. There appears, however, to be reason for acknowledging a state's right to withdraw a vote rejecting an amendment and to substitute a vote of ratification.[2]

The fourteenth amendment and the "fundamental conditions" prescribed at the time of the readmission of the states were not enough to satisfy Congress; the southern whites, determined not to be ruled — if ruling it might be called — by the ignorant blacks and carpetbaggers, might find a way to avoid the conditions and spurn the imposed restrictions. Moreover, suffrage reform was in the air. Woman suffrage was discussed with a new intensity. Some zealots were anxious to go much further; there seemed, indeed, to be a belief occupying otherwise vacant space in many minds that the earth could be purified and regenerated, if only enough people were allowed to vote; if ignorant freedmen just relieved from bondage could be transformed into competent citizens, why was it not wise to bestow the blessings of the ballot upon everyone? [3] Even at the north there was difference of opinion on the advisability of granting negro suffrage. Some of the states had refused or neglected to alter their constitutional provisions; but Congress decided to act. A constitutional amendment, the fifteenth, was passed (February, 1869) and submitted to the states: "1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude. 2. The Congress shall have power to enforce by appropriate legislation the provisions of this article." March 30, 1870, the Secretary of State announced the ratification of the amendment by twenty-nine states.[4] Three of the states listed as ratifying the amendment were not, in congressional theory, fully restored when they participated in the solemn task of amending the Constitution. The southern states might still keep the negro from voting, but not legally by any provision explicitly directed to that end. That the amendment has at any time been beneficial to the negro at the south may be doubted.

When most of the southern states were restored, conditions were laid down similar in most respects to the conditions prescribed for Arkansas, which we have already mentioned. These conditions were intended to fasten negro suffrage permanently on the reconstructed states; but the terms of the conditions were so sweeping and comprehensive, that, if enforced, they would prevent any and every alteration in the qualifications for voting. Though the fourteenth amendment allowed the states to decide what the basis of suffrage should be — subject to a contingent reduction of representation — the states thus restored were to be perpetually restrained from exercising that very right of determination. Amid all the unnecessary and intemperate measures passed during this dismal decade, no other measures seem so unnecessary or so absurd as these so-called conditions. If congressmen did not know they were both unjust and unconstitutional, their ignorance is not a very satisfactory excuse.

We should notice that the fifteenth amendment did not annul the second section of the fourteenth amendment. There still remained with the individual states the power to modify their suffrage laws, provided that no discrimination was made because of race, color, or previous condition of servitude. Some of the southern states at a later time prescribed qualifications for voting that were in conflict with the terms of the "fundamental conditions", but did not on their face run counter to the fifteenth amendment. No one, presumably, can doubt the right of the states to make such alterations in their suffrage laws. The constitution of Mississippi (1890, 1892), for example, provided that every elector must be able to read any section of the state constitution or he must be able to understand it, when read to him, or give a reasonable interpretation of it.[5] Though these qualifications are applicable to blacks and whites without discrimination, it may be easy enough in practice for election officers to discover the inability of a negro to interpret a passage in the constitution but to discover also remarkable sagacity and legal learning in a white man. However that may be, the effect of these provisions, if honestly and impartially applied, should remove ignorance from the ballot-box. As a consequence, the congressional representation in any state prescribing these qualifications can in theory probably be reduced,[6] if Congress can determine the actual basis for such a reduction. But the subject has been in oblivion for forty years.

No enactment that is obviously intended to avoid the restrictions of the fifteenth amendment can be considered valid. The attempt was made in certain states by inserting in their constitutions a provision commonly called the "grandfather clause", declaring that certain prescribed qualifications for voting should not apply to persons having the right to vote before a specified date or to the descendants of such persons. These provisions would result in admission to the polls of every person who was qualified to vote or whose ancestor was qualified to vote at a time before the establishment of negro suffrage; they would, therefore, subject negroes to qualifications and restrictions not applicable to many whites. Such enactments were plainly a subterfuge. In pronouncing a provision of the Oklahoma constitution to be unconstitutional, the Court declared its inability to "discover how, unless the prohibitions of the Fifteenth Amendment were considered, the slightest reason was afforded for basing the classification upon a period of time prior to the Fifteenth Amendment. Certainly it cannot be said that there was any peculiar necromancy in the time named which engendered attributes affecting the qualification to vote which would not exist at another and different period unless the Fifteenth Amendment was in view."[7]

After the failure of impeachment, Johnson, though ignored by the men who had sought his overthrow, had charge of his own cabinet, and some things he could do without suffering more than maledictions from his enemies. They might grumble, but he had the power to pardon and this power he exercised. On the fourth of July, 1868, in order to promote and procure complete fraternal reconstruction among the whole people, he issued a proclamation of amnesty, granting pardon to all who directly or indirectly had participated in rebellion, excepting such persons as might be under indictment. On Christmas day, he proclaimed full pardon, without reservation. This pardon could not relieve anyone from the disabilities laid down in the third section of the fourteenth amendment. At sundry times, in later years, Congress passed acts for partial removal of these disabilities, but not until 1898 were they entirely removed.

With the inauguration of Grant (1869), the Republicans were in control of the presidential office. But the election returns, though showing a large electoral majority, did not indicate the unwavering support of a solid north and unqualified readiness to approve the methods of Reconstruction. Out of a total popular vote of 5,716,082, Seymour, the Democratic candidate, received 2,703,249. Among the states casting Republican electoral votes were most of the southern states recently reconstructed. How these states would vote, when once the whites obtained full control, was fairly plain — the emergence of a "solid south", where the people would hold in memory the ignominy of a Reconstruction they detested. Moreover, New York, New Jersey, and Oregon were carried by Seymour, and the vote of Indiana, long to remain a doubtful state, was too close to be comfortable; Connecticut was carried by only 3,000, California by 500. How were the Republicans to be sure of subsequent success unless they held securely in their hands the vote of the reconstructed south? The newly-enfranchised negroes must be protected at the polls.

Unquestionably other matters — the deeds and misdeeds of the party — affected in one way or another the strength of the party in the next few years; the determination to pay the public debt, the preparation for resumption of specie payments, and to some extent the tariff policy strengthened the party's hold upon the country; but more helpful than all else was widespread loyalty to the party that had "saved the union". One of the interesting and significant changes which shows the nature of the party system as an instrument of government is the fact that the Republican party became the conservative party of the nation; it had begun its career in opposition to a powerful and entrenched economic system, slavery, which had its grasp upon interests even beyond the borders of the slave states; Republican policies of the early days were disturbing and productive of anxiety among those not wishing to see the waters of peace agitated. But it had become the natural home of competent and effective business men and men of affairs; a party changes even its character with the passing of time; it is deeply affected by its own successes.

In the years succeeding Grant's accession, it seemed to Republican leaders that the well-being of their party depended on what they termed a fair ballot, an honest count at the south, and an obedience in reality to the new amendments. The process of Reconstruction had antagonized those elements among the southern people who before the war had been most reluctant to break away, and who, perhaps because many of them had been Whigs, had political and social attitudes of mind which might possibly have prevented them from forming a solid block with their old-time political opponents.[8] But now all those wishing to get possession of the state governments and wrest control from the carpetbaggers belonged to one party; all were Democrats. Probably under any other system of Reconstruction the same results would have followed.

The negro had been given the ballot, partly, no doubt, because of partisan zeal, but also because of a genuine idealism among a large portion of the northern people and because the suffrage provided the freedmen with means of protecting their new-found rights. The south could be ruled by bullets or by ballots, by the federal army or by votes; but to use the army permanently was only theoretically possible, and so Reconstruction was coupled with negro suffrage; ballots were chosen instead of bullets. One of the things difficult to understand is this apparent belief, held by plain citizens and shrewd politicians, that the southern whites would yield supinely to the magic of the ballot in the hands of black men, their former slaves. Hardly had the process of Reconstruction been ended or supposedly ended before it became obvious that voters must be protected by the army. These brief words sum up the history of Grant's administration (1869-1877) as far as that history deals with the south.

Such summing up omits details of stupid, extravagant, and venal state legislatures in the southern states. It omits tales of disorder, riots, and assassinations. It leaves out of consideration the determination of the southern whites not to be governed by ignorance and their determination to have a government and a social order directed and upheld by white men. This story has been often told; it is a sorry and doleful tale. It is a story of the unflinching decision of a competent people to get possession of their own institutions and to manage their own affairs; if this could not be attained except by violation of law, then the law must be violated; civilization, as the south considered civilization, must be made secure despite the cruel and disastrous legislation imposed upon the vanquished by victorious opponents. The fact is, the southerners felt a deep repugnance to negro domination and they did not enjoy being robbed of what substance had been left them; the best of them were not willing, as were many of their compatriots in northern cities, to accept with complacency that species of political banditry which was the humiliating characteristic of American municipal life. They never failed to proclaim undeviating objection to the "lapse of Caucasian civilization into African barbarism"; they denounced the attempt to degrade the Caucasian race and promote the African to authority. And if the south could in its turn be ruthless and vindictive, that is a fact which needs no explanation. The least we can do — and the most we can now do — is to lament the incapacity of those in political authority at Washington to find in conjunction with the best southern leaders a method of reform and restoration which would have helped to make the south politically, socially, and in sentiment an integrant part of an integral nation. Such a nation did not exist for a generation after Appomattox. And so, though the nation was no longer half slave and half free, it continued to be divided against itself.

It is not the historian's business, even when he is drawn into disapproval of a course pursued, to be confident that some other course would have been highly satisfactory in its effects. To a person standing at the forks of a road and questioning which of the two branches of the road he should follow, both routes may appear in most respects free from obstacles, and he chooses the route appearing to be the more convenient and reliable. After he has made his choice and obstacles impede his path, he is likely to think he should have taken the other road; as a matter of plain fact, however, the one road, the one taken, has actually disclosed its troublesome features; of the other he knows little if any more than he knew before he made his choice; its pains and its penalties cannot be known and can with no assurance be imagined. The study of history shows the troubles of a route really followed; it does not let us know what might have happened had the other way been taken. We are entitled, however, to speculate. We have the right to assume as a lesson for political conduct that an attitude of friendly and unvindictive interest in the welfare of others will provide its substantial reward.

Grant's administration began auspiciously. His inaugural address spoke earnestly of a desire to see the union fully restored and the prevalence of good feeling throughout the nation. His conciliatory proposals were helpful in bringing about the restoration of Virginia, Mississippi, and Texas. The troubles in Georgia were especially acute, and, as we have seen, that state, after much tribulation, was not readmitted until the midsummer of 1870. But on the whole there appeared ground for hope that the worst was over and that a new era of good feeling or at least a diminution of the existing suspicion and hostility was at hand. But stormy times were ahead. Conditions in the southern states, where the "carpetbag" governments were wasting the money of communities already impoverished by war, were becoming intolerable. The Loyal Leagues, which had been formed some years earlier to inculcate patriotism and to lead the freedmen in the paths they should follow and were now largely composed of negroes, gave enthusiastic if ignorant support to the "carpetbag" regime. Their processes were not always gentle. By 1869 or 1870, they had been beaten at their own game by the Ku Klux Klan, which stopped at nothing in its determination to crush the "scalawags" and the "carpetbaggers", and to put the negro "in his place".

With the purpose of protecting elections from violence, fraud, and intimidation, Congress passed two "enforcement acts" (May 31, 1870, February 28, 1871). These acts may properly be considered together.[9] They are elaborate and detailed, containing sundry provisions for the protection of the voter and the polls. The first includes a reŽnactment of the Civil Rights Act of 1866. Any brief discussion is rendered difficult by the complexity of the acts; no general and inclusive judgment is possible because portions were doubtless considered valid and others invalid. These acts were intended to rest upon the enforcement sections of the three amendments, the products of the war and Republican Reconstruction. In considering the question of constitutional validity, we must bear in mind that the construction of the war amendments was worked out only gradually by judicial decisions in the ensuing years. The general principles resulting from the controversies and laid down by the courts are of importance and of continuing interest; a word on that subject is appropriate in this place.

The first section of the fourteenth amendment had been drawn with the purpose of making the provisions of the Civil Rights Act of 1866 unquestionably valid; and that section was intended to protect all persons in the possession of civil rights and of equality under the law. The adoption of the fourteenth amendment did not, however, make the thirteenth entirely valueless and obsolete, for under that amendment the national government may proceed against actual slavery or involuntary servitude, even if unsupported by any state law;[10] but the misdeeds of individuals mentioned in the enforcement acts can scarcely be looked upon as establishing servitude in any proper or improper sense. And as far as these acts were directed against any "person" who should endeavor to deprive another of his civil rights, the legislation cannot be supported by the fourteenth amendment, as later decisions made perfectly plain.

Those sections of the enforcement acts, that were primarily directed against intimidation of voters and corruption at the polls, did not make proper distinction between elections at which representatives to Congress were chosen and those which were solely state elections; and there was no suitable recognition of the limits of congressional power under the fifteenth amendment. The general principles as later announced by the Court may be briefly summarized. Without regard to the war amendments, Congress has authority to legislate for order at the polls and for the sanctity of the ballot when representatives to Congress are chosen. This power has been based in part on the constitutional clause empowering Congress to make regulations concerning the times, places, and manner of holding elections;[11] but the reasoning of the Court points on the whole to the power and the duty of the national government to protect itself, and not merely to a power derived from any specific clause in the Constitution. "The government of the United States", the Court said, "is no less concerned in the transaction than the State government is. It certainly is not bound to stand by as a passive spectator, when duties are violated and outrageous frauds are committed." The Court went so far as to say, "The objection that the laws and regulations, the violation of which is made punishable by the acts of Congress, are State laws and have not been adopted by Congress, is no sufficient answer to the power of Congress to impose punishment.... The imposition of punishment implies a prohibition of the act punished." [12] The fact that state officers are elected at the same time that federal representatives are chosen is no reason for holding federal legislation improper. But the national government has no right to regulate purely state elections, except as far as is appropriate for the enforcement of the fifteenth and nineteenth amendments.[13] And the enforcement justified by these amendments must be directed against state action, that is to say, action provided by state law or action performed by state officials under color of law; for the amendments refer not to individual conduct but place a specific restriction upon the United States and every state.[14]

In April, 1871, the Ku Klux Act was passed. Its purpose was to subdue the disorder in the south and to protect the freedmen from violence and intimidation. In some sections the conditions were intolerable; though the southern whites were prepared to overcome negro domination by any and every available method, the more substantial members of the southern communities were themselves troubled by the disorder.[15] A portion of the act, which doubtless was of supreme importance in the minds of the framers, made it an offense for two or more persons to conspire or go in disguise upon the public highway or upon the premises of another for the purpose of depriving any person or class of persons of the equal protection of the laws, or for the purpose of hindering the authorities of any state from securing to all persons the equal protection of the laws. This portion of the statute was an assumption of unconstitutional power.[16]

But the act also authorized the President to use the army and navy for the suppression of insurrection and domestic violence, and under certain circumstances to suspend the writ of habeas corpus. A method was thus provided for crushing the Ku Klux — but more than this: troops could be used and were used to uphold the carpetbag governments, which had entered upon a drama of extravagance and waste with scrupulous attention to every opportunity for private gain and public discredit. Constitutional or unconstitutional, the law had some considerable effect in checking violence, and the troops succeeded in stamping out the more brutal activities and unpleasant enterprises of the Ku Klux.

Throughout the land political conditions in the early seventies presented a dreary picture. The war had left a legacy of corruption and venality. We cannot know, of course, whether the northern people had actually been so affected by bloodshed and by the hatred engendered by Reconstruction that they were no longer sensitive to abuses that should have aroused their anger and moved them to action. Some of them were too busy to be bothered by political corruption. They were engaged in industrial affairs, building railroads, entering on new phases of corporate enterprise. Thousands upon thousands of public-spirited and conscientious men were still certain that the course of Reconstruction had been just and honorable, that the negro must not be left to his fate at the hands of "rebels", and that right and duty pointed to the need for direction and control by the federal government; they believed that the public credit should be made secure and, in general, the country should be saved from disaster which they thought would be brought on by the machinations and incompetence of the Democracy. About the time when Congress was engaged in passing legislation for the crushing of the Klan and was also protecting the corrupt carpetbag governments in the south, New York City, in a spasm of civic righteousness, pounced upon Tweed, who had been gorged to capacity with ill-gotten gain.[17]

The platform of the Liberal Republican party in 1872 demanded the immediate and absolute removal of all disabilities imposed on account of the rebellion, and it announced the belief that universal amnesty would result in peace. It asked for local self-government, with impartial suffrage, which would "guard the rights of all citizens more securely than any centralized power". It declared also for the supremacy of the civil over military authority and the freedom of persons under the protection of the habeas corpus. It demanded "for the individual the largest liberty consistent with public order, for the State self-government, and for the nation a return to the methods of peace and the constitutional limitations of power." The Republican platform declared for the enforcement of the recent amendments and asserted that complete liberty and exact equality in the enjoyment of all civil, political, and public rights should be maintained by efficient and appropriate state and federal legislation. Congress and the President, it said, deserved the thanks of the nation for the suppression of violent and treasonable organizations in certain lately rebellious regions and for the protection of the ballot-box. On the main question of Reconstruction — or what remained of Reconstruction — the two parties were distinctly opposed.

The Liberal Reform movement was apparently a failure. Greeley was badly beaten. And yet failure it can hardly be called; the outcry against public corruption and the demand for a more conciliatory policy toward the south must have had some effect; at all events, the ruling party lost a considerable number of its most competent members. And events soon showed that members of the old party, though still affected by appeals of the politician and still indignant at southern "atrocities", were growing weary and heartsick, believing that military rule at the south and governments imposed upon the southern people by their conquerors should not continue. So, perhaps, the year 1872 may be looked upon as the beginning of the end. It was high time. Two years later the Republicans suffered a decisive defeat in the congressional elections. Though the defeat was no doubt caused largely by the disastrous panic of 1873, the party must henceforth watch its defenses and study the terrain with care, or it was doomed to defeat in the next presidential campaign.

There was evidence that the war was finished when Charles Sumner declared in the Senate, "... it is contrary to the usage of civilized nations to perpetuate the memory of civil war", and proposed that "the names of battles with fellow-citizens" be no longer "continued in the Army Register, or placed on the regimental colors of the United States." And perhaps there was even greater proof of the dying of old animosities when L. Q. C. Lamar of Mississippi, eulogizing Sumner in Congress, said, "Charles Sumner was born with an instinctive love of freedom.... To a man thoroughly permeated and imbued with such a creed and animated and constantly actuated by such a spirit of devotion, to behold a human being or a race of human beings restrained of their natural rights to liberty, for no crime by him or them committed, was to feel all the belligerent instincts of his nature roused to combat. The fact was to him a wrong which no logic could justify." Though the day of new force bills was gone by, Congress did not quite surrender the hope of compelling, by direct legislation, a recognition of the civil rights and, in large measure also, the social equality of the negro. Sumner died in 1874, but, as a memorial to him and his ambitions, Congress passed the Civil Rights Act the next year. It declared all persons within the jurisdiction of the United States entitled to the full and equal enjoyment of the accommodations and privileges of inns, public conveyances, theaters, and other places of public amusement, "subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude." It made the act of any person denying to any citizen such full enjoyment and privilege a misdemeanor punishable by fine or imprisonment, and it allowed the offended party to sue for civil damages. It proved to be an instance of misdirected legislative zeal. Eight years after its passage the essential portions of the act were pronounced unconstitutional by the Supreme Court.[18]

It was held by the Court to assume the existence of federal power unwarranted by either the thirteenth or the fourteenth amendment. "It would be running the slavery argument into the ground," the Court declared, "to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car...." [19] And, while positive rights and privileges are undoubtedly secured by the fourteenth amendment, they are secured by way of prohibitions against state laws and state proceedings affecting these rights and privileges. "... it is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings." [20]

The principle laid down in the decision was not altogether novel,[21] but it made perfectly clear that the fourteenth amendment was not to be enforced by congressional acts directed against the misconduct of individual citizens unsupported by the authority of the state. The case ranks in importance with the Slaughter-House Cases (1873), an account of which will be given in a succeeding chapter. Worthy of notice, too, is the exercise of the power of the Court to declare a congressional act unconstitutional. By this time there was a considerable body of precedent for the use of that power;[22] but the significance of this case lies in the fact that, had the Court not possessed the power or had the power not been used, the nature of our composite system of government would have been altered — we might almost say destroyed — by a statute based on the supposition that Congress could at will regulate individual conduct and personal relationships. The principle and the practice of judicial review of legislative acts have often been objected to; the courts have been charged with assuming unconstitutional power. But no one has very successfully pointed out how the structure of the federal state can be preserved without judicial determination of legislative limits. These two Court decisions — the Slaughter-House Cases in 1873 and the Civil Rights Cases in 1883 — illustrate the way in which judicial power may preserve the essentials of federalism.

The greenback question, which was a matter of great public interest in the years of Grant's administration and, indeed, continued for a time to embarrass politicians and trouble economists after his retirement, was a matter of constitutional as well as economic importance. In 1870 the Supreme Court, three justices dissenting, declared that the acts passed during the war making all United States notes legal tender were invalid in so far as they applied to preexisting debts.[23] There were many persons not content with the decision; they wished a full recognition of congressional power. At that critical moment, Grant appointed two new justices to the Court — Joseph P. Bradley and William Strong. It would be difficult to question seriously the character or the capacity of these men. But the assertion was made — and the suspicion probably still lingers — that the appointments were made for the express purpose of obtaining a reversal of the Court's decision.

The President was said to have deliberately "packed" the Court. There appears to be no substantial ground for this charge, but it brings to our attention the ease with which the Court can be altered by a president determined to have his way, if a majority of the Senate be with him. And one is tempted to say in addition, that, if Grant had taken that step for the express purpose of bending the Court to his will, it would have been only an extreme and peculiarly obnoxious example of a practice indulged in, when nominations of judges are under consideration in the Senate. For in those discussions we find many examples of opposition or advocacy, based not upon the character and learning of the person proposed for the bench, but upon the nature of his decisions in a lower court or upon his supposed attitude of mind toward especially significant policies. There is nothing but a high regard for the ethics, an appreciation of the duty of public servants, to restrain them from using the powers of appointment to attain their ends. But this is a delicate and difficult question. We have already seen its appearance in other connections.[24] The present writer is not prepared to deny that circumstances may arise when the composition of the Court and the effect of a particular appointment to its membership may properly be taken into consideration. At all events, such considerations are certain to have weight.

The Court, with its new members, rendered a decision overruling in part the previous decision and upholding the power to make paper money legal tender as applied to contracts made both before and after the passing of the legislation.[25] Justice Strong read the opinion of the Court, in which Justice Bradley concurred though giving an extensive opinion of his own. There was strong and vigorous dissent, and these few words may be taken from the dissent of Justice Field as illustrative of the atmosphere of the court-room: "In the discussions which have attended this subject of legal tender there has been at times what seemed to me to be a covert intimation, that opposition to the measure in question was the expression of a spirit not altogether favorable to the cause, in the interest of which that measure was adopted. All such intimations I repel with all the energy I can express.... But I do not admit that a blind approval of every measure which they may have thought essential to put down the rebellion is any evidence of loyalty to the country. The only loyalty which I can admit consists in obedience to the Constitution and laws made in pursuance of it. It is only by obedience that affection and reverence can be shown to a superior having a right to command. So thought our great Master when he said to his disciples: 'If ye love me, keep my commandments.' " [26]

While both Strong and Bradley; spoke of the necessities of the times when the acts were passed, the constitutionality was not made to rest on the war power as the distinct basis. Bradley said, "I do not say that it is a war power, or that it is only to be called into exercise in time of war; for other public exigencies may arise in the history of a nation which may make it expedient and imperative to exercise it." The two opinions were expressive of very decided nationalism and of a broad construction of the Constitution. Thirteen years later (1884) the Court announced the constitutional power to make treasury notes legal tender in time of peace as well as war.[27]

After the publication of this book an article by Sidney Ratner appeared in the Political Science Quarterly (Vol. L, pp. 343-358): "Was the Supreme Court Packed by President Grant?" This article gives a passage from the manuscript diary of Hamilton Fish, under the date, October 28, 1876. Fish says that at that time Grant said to him, with reference to the charges then being made, "it would be difficult for him to make a statement; that although he required no declaration from Judges Strong and Bradley on the constitutionality of the Legal Tender Act, he knew Judge Strong had on the Bench in Pennsylvania given a decision sustaining its Constitutionality and he had reason to believe Judge Bradley's opinion tended in the same direction; that at that time he felt it important that the Constitutionality of the Law should be sustained, and while he would do nothing to exact anything like a pledge or expression of opinion from the parties he might appoint to the Bench, he had desired that the Constitutionality should be sustained by the Supreme Court; that he believed such had been the opinion of all his Cabinet at the time." To the reader it may appear to be mere quibbling, if the present writer suggests that when anyone, more than six years after an event, declares what he had in mind at the earlier time, his words must be read with at least a glimmer of suspicion. Ratner also calls attention to the assertion in G. S. Boutwell's Reminiscences (1902), that Chief Justice Chase, about two weeks before the decision in Hepburn v. Griswold was rendered, had told him what the decision would be. The importance of this fact, if the Reminiscences are to be literally believed, is that it tends to discredit the assumption that Grant was ignorant of the character of the decision when he sent the names of the two men to the Senate; for if Boutwell, the Secretary of the Treasury, knew, perhaps he informed Grant. The statement in the Reminiscences is not easily reconciled with a statement Boutwell had made to George F. Hoar six years earlier (1896). After saying that in his choice of the two justices Grant was influenced by the belief that they would uphold the Legal Tender Acts, Ratner declares, "Since he did not exact any pledge or expression of opinion from either Bradley or Strong before nominating them, it is not just to say that he 'packed the court,' or that the new judges were 'creatures of the President placed upon the Bench to carry out his instructions.' "

The reader cannot obtain from a brief note like this all the evidence for an opinion; but he is entitled to be informed of the new evidence. My own opinion, put in the shortest possible terms, is that Grant would not have appointed two men who, he believed, would declare the Legal Tender Acts void. At the present writing, I am unwilling to make a more positive statement.

[1] Ex parte McCardle, 7 Wallace 506 (1869).

[2] See H. V. Ames, The Proposed Amendments to the Constitution, Am. Hist. Asso. Report for 1896, II, p. 300; T. M. Cooley, The General Principles of Constitutional Law (4th ed), p. 257 and references there given. Oregon withdrew ratification even after promulgation of the amendment by the Secretary of State. Ames, op. cit., p. 377.

[3] The extent to which some enthusiasts were prepared to go is illustrated by an amendment championed by James Brooks of New York in 1869: "The right of any person of the United States to vote shall not be denied or abridged by the United States or any State by reason of his or her race, sex, nativity, or age when over twelve years [!], color or previous condition of slavery...." Ibid., pp. 237-238.

[4] New York, counted among the twenty-nine, repealed her ratification — the repeal being of doubtful validity; and Georgia, not as yet fully in possession of her rights in the union, accepted the amendment — a fact stated by the Secretary in a separate paragraph. The Secretary apparently counted the resolution of repeal as invalid.

[5] See Williams v. Mississippi, 170 U. S. 213, 225 (1898), where the Court said that the constitution and the statutes of Mississippi do not on their face discriminate between the races, but intimated that "evil" in administration was possible under them. There still remains since the passage of the nineteenth amendment the right to prescribe qualifications for voting, provided there is no discrimination contrary to either the fifteenth amendment or the nineteenth amendment.

[6] Attention should be called to the argument to the effect that the requirement of a capitation tax or of the ability to read is not a denial of the suffrage. See Cooley, op. cit., p. 336.

[7] Guinn v. United States, 238 U. S. 347, 365 (1915). See also Myers v. Anderson, 238 U. S. 368 (1915), where a state statute was held void. A state statute excluding negroes from voting in Democratic party primaries was declared a violation of the equality clause of the fourteenth amendment. Nixon v. Herndon, 273 U. S. 536 (1927). See also Nixon v. Condon, 286 U. S. 73 (1932).

[8] Benjamin H. Hill said in 1871: "I tell you frankly that after the war ended, we, the old whigs and the Union men, expected to take control of affairs down here; that was our expectation, and I think we would have done it if you had allowed us to do so. I will tell you candidly that I think very likely if the republican party had been ... magnanimous to the old whigs after the war, in extending us privileges, ... it might have built up a republican party in the South, and given us the control of this country." Quoted in Fleming, Documentary History of Reconstruction, II, p. 91.

[9] The acts may be found in Fleming, Documentary History of Reconstruction, II, p. 102 ff. "By act of February 8, 1871, a rigorous system of Federal supervision over congressional elections was established. This was designed not only to supplement the weakness and inefficiency of the radical state governments in the South, but also to counteract the fraudulent and violent practices which prevailed in New York and other large cities of the North." Dunning, Reconstruction, p. 186.

[10] "We entertain no doubt of the validity of this legislation [referring to federal acts against peonage], or of its applicability to the case of any person holding another in a state of peonage, and this whether there be municipal ordinance or state law sanctioning such holding. It operates directly on every citizen of the Republic, wherever his residence may be." Clyatt v. United States, 197 U. S. 207, 218 (1905). "Under the Thirteenth Amendment, the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not...." Civil Rights Cases, 109 U. S. 3, 23 (1883). "The things denounced are slavery and involuntary servitude.. , . All understand by these terms a condition of enforced compulsory service.... A freeman has a right to be protected in his person from an assault and battery. He is entitled to hold his property safe from trespass or appropriation, but no personal assault or trespass or appropriation operates to reduce the individual to a condition of slavery." Hodges v. United States, 203 U. S. 1, 16-18 (1906). See also, for an interpretation of the scope of the amendment, Robertson v. Baldwin, 165 U. S. 275 (1897); Bailey v. Alabama, 219 U. S. 219 (1911).

[11] Art. I, sec. 4, par. I. To take charge to any extent of an election for the choice of presidential electors, if representatives are not chosen at the same time, might in theory be doubted, except as such charge is possible under the fifteenth, and now the nineteenth, amendment. See McPherson v. Blacker, 146 U. S. 1, 35 (1892), where the Court said: "In short, the appointment and mode of appointment of electors belong exclusively to the States.... They are, as remarked by Mr. Justice Gray in In re Green, 134 U. S. 377, 379, 'no more officers or agents of the United States than are the members of the state legislatures when acting as electors of Federal senators....'"

[12] Ex parte Siebold, 100 U. S. 371, 388 (1880). Referring to various sections of the revised statutes, and especially to sections 5515 and 5522, the Court said, "These portions of the Revised Statutes are taken from the act commonly known as the Enforcement Act, approved May 31, 1870 ... and from the supplement of that act, approved February 28, 1871. They relate to elections of members of the House of Representatives, and were an assertion, on the part of Congress, of a power to pass laws for regulating and superintending said elections, and for securing the purity thereof, and the rights of citizens to vote thereat peaceably and without molestation. It must be conceded to be a most important power, and of a fundamental character." Ibid., 382. See also Ex parte Yarbrough, no U. S. 651 (1884); Wiley v. Sinkler, 179 U. S. 58 (1900).

[13] United States v. Reese, 92 U. S. 214 (1876); Karem v. United States, 121 Fed. Reporter 250 (1903); United States v. Belvin, 46 Fed. Reporter 381 (1891). The power of Congress to legislate at all upon the subject of voting at purely state elections is entirely dependent upon this amendment (fifteenth).

[14] "These authorities show that a statute which purports to punish purely individual action cannot be sustained as an appropriate exercise of the power conferred by the Fifteenth Amendment upon Congress to prevent action by the State through some one or more of its official representatives, and that an indictment which charges no discrimination on account of race, color or previous condition of servitude is likewise destitute of support by such amendment." James v. Bowman, 190 U. S. 127, 139 (1903). The amendment "relates solely to action by the United States or by any State and does not contemplate wrongful individual acts. While Congress has ample power in respect to elections of Representatives to Congress, ß 5507 cannot be sustained under such general power because Congress did not act in the exercise of such power." Ibid, (syllabus).

[15] Concerning the Ku Klux movement in general, Fleming says: "The first results of the movement were good; the later ones were both good and bad. The early work of the secret orders quieted the negroes, made life and property safer, gave protection to women, stopped burnings, forced the Radical leaders to be more moderate, made the negroes work better, drove the worst of the Radical leaders from the country and started the whites on the way to regain political supremacy. The evil results were those that always follow such movements.... The movement lasted under one form or another until the close of Reconstruction, and the lynching habits of today are due largely to conditions, social and legal, growing out of Reconstruction." Fleming, op. cit., II, pp. 328-329. The movement was at its height in its most effective form from 1868 to 1870. Ibid., p. 328. Rhodes calls attention to the fact that in South Carolina there were 1207 cases pending in 1872, and the next year 617. History of the United States, VI, p. 318. These numbers give us some idea of the extent of federal action.

[16] "Section 5519 [originally a part of section 2 of the Ku Klux Act of 1871], according to the theory of the prosecution, and as appears by its terms, was framed to protect from invasion by private persons, the equal privileges and immunities under the laws, of all persons and classes of persons. It requires no argument to show that such a law cannot be founded on a clause of the Constitution whose sole object is to protect from denial or abridgment, by the United States or States, on account of race, color, or previous condition of servitude, the right of citizens of the United States to vote." United States v. Harris, 106 U. S. 629, 637 (1883). It was asserted by the government in this case that the legislation in question found its warrant in the first and fifth sections of the fourteenth amendment, but the Court pointed out that such contention could not stand, and referred to United States v. Cruikshank, 92 U. S. 542 (1876); Virginia v. Rives, 100 U. S. 313 (1880). In the latter case the Court said, "The provisions of the Fourteenth Amendment ... we have quoted all have reference to State action exclusively, and not to any action of private individuals." Ibid., 318.

[17] There was little prospect of reform within the party and little attention given to public corruption when enthusiastic party men would say, "Better the worst Republican than the best Democrat." For conditions in the public service see Oberholtzer, op. cit., II, ch. XVI; III, chs. XVIII-XIX.

[18] Civil Rights Cases, 109 U. S. 3 (1883).

[19] Ibid., 24.

[20] Ibid., 17.

[21] See, for example, Virginia v. Rives, 100 U. S. 313 (1880).

[22] Before 1865, there was one case in which the justices of a circuit court had declared an act void — Hayburn's Case, 1792. There were two Supreme Court decisions, Marbury v. Madison, 1803, and the Dred Scott case, 1857. Beginning with 1865 and ending with the Civil Rights Cases, there were fifteen. But in comparison with this decision, all the rest of these fifteen, save perhaps one, are not of vital importance.

[23] Hepburn v. Griswold, 8 Wallace 603 (1870).

[24] Notice Lincoln's attitude toward the Court and the Dred Scott case.

[25] Legal Tender Cases (Knox v. Lee), 12 Wallace 457 (1871).

[26] Ibid., 680-681.

[27] Juilliard v. Greenman, no U. S. 421. The power in question was especially associated with the power to borrow money and to provide a national currency.


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